Zampieri & Antram - [2004] FMCAfam 128

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZAMPIERI & ANTRAM

[2004] FMCAfam 128

CHILD SUPPORT – Application to set aside Child Support Agreement – where applicant claimed the agreement was obtained by fraud – where no particulars provided of alleged fraud or of grounds for otherwise departing from a longstanding agreement – where respondent sought summary dismissal – where applicant sought an adjournment to comply with authorities.

Child Support (Assessment) Act 1989 (Cth), s.117

Bryant (1996) FLC 92-690
G v G [2004] FMCAfam 9
Ross v McDermott 98 FLC 98-003

Applicant:

PAOLO ZAMPIERI

Respondent:

DALE LOUISE ANTRAM

File No:

PAM 851 of 2003

Delivered on:

10 March 2004

Delivered at:

Parramatta

Hearing date:

10 March 2004

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr Cairns

Solicitors for the Applicant:

Rita Hanna & Associates

Counsel for the Respondent:

Mr Foster

Solicitors for the Respondent:

Beilby Poulden Costello

ORDERS

(1)Application dismissed.
(2)Applicant to pay respondent's costs to be taxed if not agreed in accordance with the Family Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 851 of 2003

PAOLO ZAMPIERI

Applicant

And

DALE LOUISE ANTRAM

Respondent

REASONS FOR JUDGMENT

These proceedings were commenced by way of an application filed on 26 February 2003. At that time the applicant sought three orders. First was that the child support payments be made directly through the Child Support Agency. The second was that the child support agreement made on 17 July 1999 be reviewed and the third, that any interest payable on arrears be waived.
The applicant filed an affidavit which had been sworn on 25 February. The affidavit had ten short paragraphs, one of them indicated that his taxable income for the year ended 30 June 2002 was $36,000. The affidavit, in the manner in which it is drawn, gives some indication of the quality of assistance that was being given to the applicant. In paragraph 4 it refers to the applicant's taxable income for the year ending 30 June 2002 as being $36,336. This is supported by an exhibit which is a notice of assessment from the Deputy Commissioner. The figure given in the notice of assessment is not $36,336 but $26,336.
The affidavit refers to a child support agreement which the applicant says purports to contain his signature. He then states in paragraph eight of the affidavit that:
I do not recall having signed said document in addition to which I am unable to read or write.....I do not recall having received an explanation as to the cause or effect of any document with respect to child support payments.
At paragraph 10 the deponent relates that he is now living in a de facto relationship and is responsible for the financial support of his partner and her son. There is then a deposition paragraph in the following form:
Sworn by the deponent, Paolo Zampieri being unable to read or write, Rita Hanna read this affidavit in the presence of Nicole Desira and the deponent new [sic] and approved its contents. And then the deponent signed this affidavit in the Presence of both Nicole Desira and the witness Rita Hanna.
Finally, it is indicated that the affidavit was prepared by Rita Hanna, solicitor.
On or about 24 October 2003 an amended application was filed. The amended application asked that:
i)The child support payments be made directly and be assessed by the Child Support Agency.
ii)The child support agreement made on 19 and/or 21 July 1999 be declared void.
iii)Any interest on any arrears and penalties on the child support payments be waived.
No further affidavit was sworn by the applicant and I am advised by Mr Foster, counsel for the respondent, that a very large number of requests were made to the applicant for financial information. No form 17 was filed. I understand that some subpoenas have been issued and some of them have been answered.
The matter was due to be heard first on a date in December 2003 but was regrettably not reached. It was stood over until today. When the matter was called on for hearing at approximately 2.15 pm, Mr Foster made an application under Part 13, rule 13 of the Federal Magistrates Court Rules for summary dismissal. It is perhaps unfortunate that Mr Foster did not make a formal application in the normal way but perhaps the applicant may be advantaged by my allowing the matter to be heard like this rather than as an application by Mr Foster of no case to answer which he could easily have made.
I will therefore accept an application by Mr Foster nunc pro tunc for summary dismissal.
The case was opened by Mr Cairns on behalf of the husband, who indicated to me that the application was one for me to declare null and void the original agreement on the grounds that it was obtained by fraud. It was also, to some extent, an application for a departure or variation of the agreement due to the changed financial circumstances of the husband. As such, an application is permitted and is to be considered under the provisions of s 117 of the Child Support (Assessment) Act 1989. The Courts have considered such applications in cases such as Bryant (1996) FLC 92-690 and G v G [2004] FMCAfam 9 but it is clear that in order to do that the Court must be satisfied of the matters contained in s 117.
The affidavit which I have before me makes no allegation of fraud. Indeed, it does not even say that the applicant did not sign the agreement. It merely says that he did not recall signing the agreement. The other material in the document may hint at the possibility of a claim under s 117(2)(c)(i) but absolutely no particulars are given relating to the lengthy period over which the child support agreement has been in force. The applicant has a right to be disappointed at the quality of the documentation.
I pointed out to Mr Cairns that I was minded to accept the arguments put forward by Mr Foster that the application should be dismissed. He sought instructions. He returned with a request that the application be adjourned so that his client could do what he should have done well over one year ago. I am disinclined to grant that application. I am told by Mr Foster that his client has expended a considerable amount of money in legal costs in fighting the case which is presently before me. Certainly the case has been in the files for a considerable period of time and certainly the applicant, had he been properly represented, would have made a better effort to establish what is required to be established in order to succeed. Allegations of fraud are very serious allegations. They should be carefully made and properly proved. No such effort was made in this case. The affidavit which the applicant has filed would not go anywhere near establishing the matters required by s 117 as explained by the full bench in Bryant and in Ross v McDermott 98 FLC 98-003.
I am not minded to grant the adjournment application. I think that to be fair to the respondent there has to be an end to these particular proceedings. She should have an order for costs.
I dismiss the application pursuant to Part 13. I order that the applicant pay the respondent's costs to be taxed if not agreed in accordance with the Family Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: